Citation Nr: 9832531
Decision Date: 10/30/98 Archive Date: 11/03/98
DOCKET NO. 94-38 808 ) DATE
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On appeal from the
Department of Veterans Affairs Medical and Regional Office
Center in Wichita, Kansas
THE ISSUE
Entitlement to an increased rating for bipolar affective
disorder/schizoaffective disorder, currently evaluated as 50
percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
W.L. Puchnick, Associate Counsel
INTRODUCTION
The veteran served on active duty from December 1977 to July
1991.
This case is currently before the Board of Veterans’ Appeals
(BVA or Board) on appeal from a February 1993 rating decision
by the Department of Veterans Affairs (VA) Regional Office
(RO) in Wichita, Kansas, which granted entitlement to service
connection for bipolar affective disorder/schizoaffective
disorder, and assigned a 30 percent disability evaluation.
The veteran filed a timely appeal to that determination.
In July 1997, the Board remanded the instant appeal for
additional evidentiary development. The claims file has been
returned to the Board for appellate review.
Subsequent to the July 1997 Board remand, the RO increased
the evaluation for the veteran’s service-connected bipolar
affective disorder/schizoaffective disorder to 50 percent, in
a March 1998 rating decision. The Board notes that in a
claim for an increased rating, the claimant will generally be
presumed to be seeking the maximum available benefit allowed
by law and regulation. Therefore, it follows that such a
claim remains in controversy where less than the maximum
benefit is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993).
There is nothing in the record to show that the veteran
expressly stated that she was only seeking a 50 percent
rating for her service-connected bipolar affective
disorder/schizoaffective disorder. Hence, the Board will
consider the increased rating decision on appeal.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran maintains that the RO erred in denying her an
increased evaluation for her service-connected bipolar
affective disorder/schizoaffective disorder. She maintains
that she is entitled to a 100 percent disability evaluation
for her disorder, because the nature of same makes it most
difficult, if not impossible, to establish effective
relationships or retain or maintain gainful employment. The
veteran asks that all reasonable doubt be resolved in her
favor.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran’s
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the record supports the
assignment of a 70 percent disability evaluation for the
veteran’s service-connected bipolar affective
disorder/schizoaffective disorder.
FINDINGS OF FACT
1. The veteran’s service-connected bipolar affective
disorder/schizoaffective disorder is not productive of more
than severe impairment of social and industrial adaptability,
as characterized by: mood swings, resulting in reduced
energy level and lessened ability to concentrate and focus on
the subject task; poor sleep and the effects of prescribed
medications, resulting in tiredness; and a GAF score of 40.
2. The veteran’s service-connected bipolar affective
disorder/schizoaffective disorder is not manifested by
occupational and social impairment that causes deficiencies
in most areas such as work, school, family relations,
judgment, thinking, or mood, due to such symptoms as:
suicidal ideation; obsessional rituals which interfere with
routine activities; speech intermittently illogical, obscure,
or irrelevant; near-continuous panic or depression affecting
the ability to function independently, appropriately, and
effectively; impaired impulse control (such as unprovoked
irritability with periods of violence); spatial
disorientation; and/or neglect of personal appearance and
hygiene.
CONCLUSION OF LAW
The schedular criteria for a 70 percent disability evaluation
for bipolar affective disorder/schizoaffective disorder have
been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R.
§ 4.132, Diagnostic Codes 9205, 9206 (1996); 38 C.F.R.
§§ 4.1, 4.3, 4.7, 4.130, Diagnostic Codes 9211, 9432 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board finds that the veteran’s claim is plausible and
capable of substantiation and is therefore well grounded
within the meaning of 38 U.S.C.A. § 5107(a). A mere
allegation that a service-connected disability has increased
in severity is sufficient to establish an increased rating
claim as well grounded. See Caffrey v. Brown, 6 Vet. App.
377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629,
631-32 (1992). Moreover, the Board is satisfied that all
relevant facts have been properly developed and that no
further assistance to the veteran is required in order to
comply with the duty to assist in developing the facts
pertinent to her claim. See 38 U.S.C.A. § 5107(b); Littke v.
Derwinski, 1 Vet. App. 90, 91 (1990).
Disability ratings are determined by applying the criteria
set forth in VA’s Schedule for Rating Disabilities. Ratings
are based on the average impairment of earning capacity.
Individual disabilities are assigned separate diagnostic
codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where
entitlement to compensation has already been established and
an increase in the disability rating is at issue, it is the
present level of disability that is of primary concern.
Francisco v. Brown, 7 Vet. App. 55, 58 (1994).
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7. Any reasonable doubt
regarding the degree of disability will be resolved in favor
of the claimant. 38 C.F.R. § 4.3.
As reported, the veteran was granted service connection for
bipolar affective disorder/schizoaffective disorder in a
February 1993 rating decision, and assigned a 30 percent
disability evaluation. Evidence cited by the RO included the
veteran’s service medical records. A Medical Evaluation
Board proceeding in March 1991 diagnosed schizoaffective
disorder, manic type. The veteran was hospitalized from
April to May of 1992 by VA. The diagnosis was bipolar
affective disorder, manic episode. The veteran did not
report for her VA mental status examination scheduled in
January 1993.
As noted previously, the veteran’s current 50 percent
disability evaluation for bipolar affective
disorder/schizoaffective disorder was assigned by the RO in
March 1998. Pertinent evidence of record relevant to the
veteran’s claim for entitlement to an increased rating for
her service-connected bipolar affective
disorder/schizoaffective disorder includes her testimony
during her August 1993 RO hearing. She testified that she
was currently working at a fast-food restaurant, and that her
last full-time position as a computer programmer ended
approximately 1 year previously. The veteran reported that
at the time she was terminated, she had many family-related
problems, which could have been a part of her bipolar
disorder. She testified that her family situation had
improved, and that although she had previously been very
active socially, she currently stayed at home fairly often.
The veteran reported that she belonged to the Disabled
American Veterans and to an astronomy club. She also
testified that she was seen by a VA psychiatrist every 6
months, and that she was frustrated in her inability to
obtain a computer programming position. The veteran reported
that her bipolar disorder resulted in paranoia, memory loss,
and extreme thirst and tremors due to medications.
The veteran presented for VA mental disorders examination in
April 1996 with complaints that her medications (Lithium,
Prolixin, Artane, and Clonopin) slowed her down in the course
of her employment as a computer programmer. She reported
having trouble working at a normal pace, as well as trouble
in learning new concepts as quickly as she did before. The
veteran also stated that she did not retain information as
well as she did previously. Finally, she was depressed that
she had gained 80 pounds since beginning to take medications.
Objectively, the veteran made a clean, casual appearance.
She was moderately obese, and oriented as to time, place, and
person. Her affect was termed somewhat anxious, and her
judgment and insight fair. The veteran’s peer relationships
were very good, and her temper even. She took an over-the-
counter medication for sleeping. She denied nightmares,
crying spells, auditory or visual hallucinations, delusions,
paranoia, phobias, guilt, or suicidal ideation. The
veteran’s memory and concentration were said to be
diminished, and she suffered from low energy and depression.
She reported mood swings. The veteran stated that she
exercised and worked on her home computer, hoping to improve
her skills. Her social life was centered around her
children. She attended church and a chapter of the Marines.
The veteran was anxious, with her biggest worry being that
she would lose her job. While the veteran’s medication was
said to control her mood swings, it apparently slowed her
down at work. The diagnosis was bipolar affective disorder,
with depression. The veteran’s prognosis was termed
“fair,” and her incapacity was said to be “moderate to
moderately severe.”
Pursuant to the July 1997 remand by the Board, the veteran
was afforded a VA mental disorders examination in September
1997. She presented with complaints of recent difficulty in
holding down a job due to problems with concentration. Most
recently, she had worked at a store. The veteran reported
memory difficulties as well as shaking from her medications.
Her condition was said to have deteriorated further as of
late because of increasing social withdrawal. The veteran
had no friends, no church affiliation, and only occasionally
saw her three children, who lived with their father. She
reported that she had trouble sleeping, woke up tired, and
had trouble focusing. The veteran stayed at home and read
ads in the newspaper, could not concentrate, and had no
energy. She felt constant thirst and had gained a tremendous
amount of weight. Objective examination revealed the veteran
to present an obese appearance. She looked neat and well
groomed, but with a flat affect. She was alert, rather
anxious, and spoke with some pressure of speech. The veteran
reported no delusions or hallucinations. Her memory and
concentration were diminished and her mood was low. She
admitted to mood swings and to anger. The veteran was
oriented as to time, place, and person. Her judgment was
intact, and she had a good deal of insight and was motivated
to remain in treatment. The Axis I diagnosis was bipolar
affective disorder. The examiner concluded that the nature
of the problem was one of mood swings, which had affected the
veteran’s energy level, as well as her ability to concentrate
and focus on whatever task was before her. Due to poor sleep
and because of the effects of her medication, the veteran was
tired all of the time. The condition was termed “chronic,”
and was known to have frequent fluctuations in course. At
that time, the extent of the veteran’s symptoms was such that
it had “definitely interfered with her ability to maintain
gainful employment,” had “affected her social adjustment
with resulting social withdrawal,” and had “definitely
affected her reliability and productivity.” The examiner
assigned a current Axis V Global Assessment of Functioning
(GAF) score of 40, said to indicate some degree of impairment
of reality testing manifested in illogical, obscure, or
irrelevant thinking with “major impairment in several areas
such as work, family relations, and psychosocial involvement
with resulting withdrawal and depression.” The veteran’s
prognosis was termed “poor,” and her incapacity as
“severe.”
By regulatory amendment effective November 7, 1996,
substantive changes were made to the schedular criteria for
evaluating mental disorders, including bipolar and
schizoaffective disorders, as set forth in 38 C.F.R.
§§ 4.125-4.132. See 61 Fed. Reg. 52,695-52,702 (1996). In a
supplemental statement of the case dated in March 1998, the
RO evaluated the veteran’s claim under the newly-revised set
of criteria, and assigned the current 50 percent disability
evaluation. The veteran had been furnished the prior set of
criteria in a statement of the case dated in May 1993. Where
the law or regulations change while a case is pending, the
version most favorable to the claimant applies, absent
congressional intent to the contrary. Karnas v. Derwinski, 1
Vet. App. 308, 312-13 (1991).
Under the criteria of 38 C.F.R. § 4.132, Diagnostic Codes
9205 (schizoaffective disorder) and 9206 (bipolar disorder)
(1996), in effect through November 6, 1996, a 50 percent
disability evaluation was warranted for considerable
impairment of social and industrial adaptability. See also
Crawford v. Brown, 5 Vet. App. 33, 36 (1993). A 70 percent
disability evaluation was warranted for lesser symptomatology
such as to produce severe impairment of social and industrial
adaptability. A 100 percent disability evaluation was
warranted for active psychotic manifestations of such extent,
severity, depth, persistence or bizarreness as to produce
total social and industrial inadaptability.
After reviewing the evidence of record, the Board concludes
that the veteran’s service-connected bipolar affective
disorder/schizoaffective disorder is most appropriately rated
as 70 percent disabling pursuant to the criteria in effect
through November 6, 1996. This evidence of record shows a
disability picture which is more consistent with a 70
percent, as opposed to a 50 percent, disability rating. The
veteran’s mood, mental functioning, and other evidence of
record all indicate that the veteran’s symptoms are
demonstrative of severe occupational and industrial
impairment. Indeed, the veteran’s incapacity was termed
“severe” following her most recent VA mental disorders
examination in September 1997. That examination revealed
that: she had difficulty concentrating, as well as memory
difficulties; that she experienced increased social
withdrawal; had trouble sleeping; lacked energy; and felt
constant thirst. Taken as a whole, the facts in the record
correspond to a disability picture that is productive of
severe social and industrial impairment.
Furthermore, it is significant that the veteran’s GAF was
reported as 40 following VA examination in September 1997.
The GAF is a scale reflecting the “psychological, social,
and occupational functioning on a hypothetical continuum of
mental health-illness.” See American Psychiatric
Association: Diagnostic and Statistical Manual of Mental
Disorders 46 (4th ed. 1994) (DSM-IV); Richard v. Brown, 9
Vet. App. 266, 267 (1996). In accordance with DSM-IV, a GAF
score of 40 represents some impairment in reality testing or
communications (e.g., speech is at times illogical, obscure,
or irrelevant) or major impairment in several areas, such as
work or school, family relations, judgment, thinking or mood
(e.g., depressed man avoids friends, neglects family, and is
unable to work; child frequently beats up younger children,
is defiant at home, and is failing at school). The same
definitions of GAF scores were included in the DSM-III-R,
which was recognized by VA under the criteria in effect prior
to the November 7, 1996, regulatory changes.
The cited evidence of record, however, does not support a 100
percent disability evaluation for bipolar affective
disorder/schizoaffective disorder due to active psychotic
manifestations of such extent, severity, depth, persistence
or bizarreness as to produce total social and industrial
inadaptability.
Accordingly, under the rating criteria for bipolar affective
disorder/schizoaffective disorder in effect through November
6, 1996, the Board determines that an increased evaluation of
70 percent is warranted.
Under the revised criteria of 38 C.F.R. § 4.130, effective
from November 7, 1996, the diagnostic code for
schizoaffective disorder was renumbered as 9211, and that for
bipolar affective disorder was renumbered as 9432. Said
criteria assign a 50 percent disability evaluation for
bipolar affective disorder/schizoaffective disorder
manifested by occupational and social impairment with reduced
reliability and productivity due to such symptoms as:
flattened affect; circumstantial, circumlocutory, or
stereotyped speech; panic attacks more than once a week;
difficulty in understanding complex commands; impairment of
short- and long-term memory (e.g., retention of only highly
learned material, forgetting to complete tasks); impaired
judgment; impaired abstract thinking; disturbances of
motivation and mood; or difficulty in establishing and
maintaining effective work and social relationships.
A 70 percent disability evaluation is warranted for bipolar
affective disorder/schizoaffective disorder manifested by
occupational and social impairment, with deficiencies in most
areas such as work, school, family relations, judgment,
thinking, or mood, due to such symptoms as: suicidal
ideation; obsessional rituals which interfere with routine
activities; speech intermittently illogical, obscure, or
irrelevant; near-continuous panic or depression affecting the
ability to function independently, appropriately, and
effectively; impaired impulse control (such as unprovoked
irritability with periods of violence); spatial
disorientation; neglect of personal appearance and hygiene;
difficulty in adapting to stressful circumstances (including
work or a work-like setting); or the inability to establish
and maintain effective relationships.
A 100 percent disability evaluation is warranted for bipolar
affective disorder/schizoaffective disorder which is
productive of total occupational and social impairment, due
to such symptoms as: gross impairment in thought processes or
communication; persistent delusions or hallucinations;
grossly inappropriate behavior; persistent danger of hurting
self or others; intermittent inability to perform activities
of daily living (including maintenance of minimal personal
hygiene); disorientation to time or place; or memory loss for
the names of close relatives, own occupation, or own name.
Unlike the analysis under the previous rating criteria for
Diagnostic Code 9411, the evidence clearly shows that the
veteran does not meet the criteria for a 70 percent
disability evaluation for bipolar affective
disorder/schizoaffective disorder effective November 7, 1996.
Karnas, supra. The Board has considered the fact that there
is some evidence of symptoms as required for a 70 percent
disability evaluation, such as difficulty in adapting to
stressful circumstances and an inability to establish and
maintain effective relationships. Significantly, however,
the veteran’s bipolar affective disorder/schizoaffective
disorder symptoms do not reflect the criteria under the new
regulations such as occupational and social impairment, with
deficiencies in most areas such as work, school, family
relations, judgment, thinking, or mood, due to such symptoms
as: obsessional rituals which interfere with routine
activities; speech intermittently illogical, obscure, or
irrelevant; near-continuous panic or depression affecting the
ability to function independently, appropriately, and
effectively; spatial disorientation; and neglect of personal
appearance and hygiene.
When the evidence is viewed as a whole, the veteran’s
symptoms are more consistent with those contemplated by the
rating criteria for a 50 percent disability rating. Hence,
under the new rating criteria for Diagnostic Code 9411 in
effect since November 7, 1996, the Board finds that an
increased evaluation for the veteran’s bipolar affective
disorder/schizoaffective disorder is not warranted.
While the Board has considered the applicability of the
doctrine of affording the veteran the benefit of any existing
doubt with regard to the issue on appeal, the record does not
demonstrate an approximate balance of positive and negative
evidence as to warrant the resolution of this matter on that
basis. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (1998).
ORDER
Entitlement to a 70 percent evaluation for bipolar affective
disorder/schizoaffective disorder is granted, subject to the
laws and regulations governing the payment of monetary
benefits.
BRUCE KANNEE
Member, Board of Veterans’ Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans’ Appeals.
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